27 December 2017

Sanction for prosecution of R. K. Chandolia was obtained from the competent authority and after completion of investigation, the instant charge sheet was filed in the Court

Some accused were in custody and some were summoned and, as such, they all appeared in the Court. Copies, as required by the Section 207 CrPC, were supplied to them to their satisfaction

Vide order dated 22.10.2012, charges punishable under Section 120­B IPC read with different provisions of PC Act and IPC were framed, read over and explained to the accused, to which they all pleaded not guilty and claimed trial.

In support of its case, prosecution has examined 153 witnesses.

PW 14 is Sh. Paresh Rathod, DGM, Reliance Power Limited. He has deposed about meaning of shell company, composition of Reliance ADA Group and minutes of Swan Capital (P) Limited and Tiger Traders (P) Limited. He has deposed about cheques issued by him in favour of SwanConsultants (P) Limited, Zebra Consultants (P) Limited and Parrot Consultants (P) Limited and vice versa regarding sale purchase of shares

PW 152 is Ms. Dayalu Karunanithi. She is mother of Kanimozhi Karunanithi. She had signed certain papers relating to Kalaignar TV (P) Limited.

After examining all the witnesses, prosecution closed its evidence

Defence Evidence 284. However, only ten accused have examined witnesses in their defence. In all, twenty­nine witnesses have been examined in defence.

Judgement –

In the beginning, the prosecution started with the case with great enthusiasm and ardour. However, as the case progressed, it became highly cautious and guarded in its attitude making it difficult to find out as to what prosecution wanted to prove. However, by the end, the quality ofprosecution totally deteriorated and it became directionless and diffident. Not much is required to be written as the things are apparent from the perusal of the evidence itself. However, a fewinstances would suffice to indicate the behaviour of the prosecution. Several applications and replies were filed in the Court on behalf of the prosecution. However, in the latter andalso in the final phase of the trial, no senior officer or prosecutor was willing to sign these applications or replies and the same used to be signed by a junior most officer InspectorManoj Kumar posted in the Court. When questioned, the reply of the regular Sr. PP would be that the learned Spl. PP would sign it and when the learned Spl. PP was questioned, he wouldsay that CBI people would sign it. Ultimately, the petition/ reply would be filed under the signature of Inspector. This shows that neither any investigator nor any prosecutor was willing to take any responsibility for what was being filed or said in the Court.

Also, when final arguments started, learned Spl. PP submitted that he would file written submissions. But instead of filing written submissions, he started arguing the matter orallyand argued it for several months. On conclusion of final arguments for the prosecution, he did not file written arguments, but instead submitted that he would file it only when the defence would file its written arguments. That was highly unfair. The prosecutor should have filed his written submissions in the first instance or at least contemporaneously with the oral submissions, so that the defence had a clear view of the case of the prosecution. The final arguments for the defence started and they kept filing their written submissions contemporaneously with their oral submissions. When the rebuttal arguments started only then the prosecution started filing its written arguments on day­to­day basis, apart frommaking oral submissions. In a sense, the main address of the prosecution was made during the rebuttal arguments. In order to meet this unique situation, the defence had to be given extratwo days for further rebutting the arguments of the prosecution introduced through written arguments. Not only this, the most painful part is that learned Spl. PP was not ready to sign thewritten submissions filed by him. What is the use of a document in a Court of law, which is not signed by anyone? When questioned as to why the learned Spl. PP was filing unsignedwritten submissions, his reply would be that some defence advocates had also not signed the written submissions. Great efforts had to be made to persuade the learned Spl. PP to signthe written submissions, but all in vain. Thereafter, written orders had to be repeatedly passed to make him sign the written submissions filed by him in the Court under the threat thatunsigned written submissions would not be taken note of. Only thereafter he yielded and signed the written submissions. When the learned regular Sr. PP and the Inspector present in the Courtwere questioned as to why they were not signing the written submissions, their reply was that the same were not coming from their office and were instead coming from the office of thelearned Spl. PP. Their submission was that unless these written arguments were processed in their office, they would not sign it. This shows that the learned Spl. PP and the regular prosecutor were moving in two different directions without any coordination. Many more things can be said but that would only add to the length of the order.

It is also to be noted that there are many representations on record made by various prominent public spirited persons before various Authorities relating to wrongdoing in the instant case. However, none of them also volunteered to enter the witness­box. What does all this mean?Apparently this means that nobody had any good or first hand material in his possession. The fate of the case thus depended upon witnesses from DoT and from the companies of theaccused. The witnesses from DoT were either highly guarded, and if I may say so hesitant, in their deposition, and also went against official record rendering themselves unreliable.

Witnesses from the companies of the accused also did not support the prosecution version

The investigating officer has avoided giving answer to the question by referring only to entry fee and nothing else. Thus, it is clear that complete facts were not placed before the then Hon'ble Prime Minister by his own office for which Sh. A. Raja cannot be faulted.

It may be noted that in view of voluminous record running into several lac pages and also technical nature of the case, oral arguments for the parties continued for about two years. Bothparties also filed written submissions in detail running into about twenty to twenty­five thousand pages.

Under Section 120­A IPC offence of criminal conspiracy is committed when two or more personsagree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree thatthe crime be committed. It would not be enough for the offence of conspiracy when some of the accuse merely entertained a wish, howsoever, it may be, that offence be committed

A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against very accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement

Section 13 of the Act provides for criminal misconduct by a public servant. Such an offence ofcriminal misconduct by a public servant can be said to have been committed if in terms of Sections 13(1) (d)(ii)­(iii) a public servant abuses its position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Sub­section (2) of Section 13 provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine

Even under the Act, an offence cannot be said to have been committed only because the publicservant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as a public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that Respondents 1 to 7 either had abused position or had obtained pecuniary advantage for Respondents 8, 9, and 10, which was without any public interest.''

there is no evidence in the deposition of these witnesses of any conspiracy to transfer the amount of Rs. 200 crore from DB group to Kalaignar TV (P) Limited

DW 1 Sh. A. Raja in his cross­examination has denied that the cut­off date of 01.10.2007 was wrongly fixed.

Prosecution put only two questions to Sh. A. Raja regarding the cut­off date to the effect that the note dated 24.09.2007, Ex PW 36/E­1, was initiated by Sh. A. K. Srivastava on the asking ofSh. R. K. Chandolia and that Sh. A. Raja had got checked through Sh. R. K. Chandolia as to whether applications on Unitech group of companies had been received or not. No question was put to Sh. A. Raja that the cut­off date was fixed by him in conspiracy with STPL and Unitech group of companies to help them in the matter of UAS licences and allocation of spectrum.The facts examined thus far do not reveal any conspiracy. Sh. A. Raja had approved the cut­off date by citing three reasons, that is, pendency of large number of applications, to discourage speculative players and time of one month from the receipt of TRAI Recommendations. These are good reasons, if seen in the light of the note, Ex PW 36/E­1, dated 24.09.2007 recorded by Sh. A. K. Srivastava. The date of 10.10.2007 or 01.10.2007 would not have made any difference to Unitech group of companies as their applications had already been filed on 24.09.2007. STPL had already applied as early as 02.03.2007

Thus, Sh. A. Raja also deposed in his crossexamination, referred to above, that the decision regarding cutoff date of 01.10.2007 was taken by him after discussion with Sh. D. S. Mathur and Sh. A. K. Srivastava. The deposition of Sh. D. S. Mathur and Sh. A. K. Srivastava have already been taken note of above. This deposition of Sh. A. Raja is acceptable because with the note, Ex PW 36/E­1, a DFA of the Press Release, Ex PW 36/E­3, was also put up by Sh. A. K. Srivastava,in which the date of 01.10.2007 is recorded. This note is typewritten. This indicates that the date 01.10.2007 was decided in advance in the department after discussion and was not arrived at by Sh. A. Raja arbitrarily by curtailing the date of 10.10.2007. PW 77 Sh. K. Sridhara has also deposed that the note, Ex PW 36/E­1, regarding cut­off date was initiated by Sh. A. K. Srivastava after discussion with him regarding receipt of large number of applications. On the contrary, Sh. A. K. Srivastava has deposed that the note was initiated by him on the asking of Sh. R. K. Chandolia.

Sh. A. K. Srivastava is not a reliable witness, as he has not displayed any quality of a reliable witness.

It is evident that the version given by Sh. A. K. Srivastava matches neither with the version of other witnesses nor with the official record. His evidence deserves to be discarded and is accordingly discarded in toto.

Everybody agreed with the note and it was approved by Sh. A. Raja on 07.11.2007. From this note, opinion of Law Ministry was not discussed at all. Nobody raised the question of this opinion. The issue of cut­off date of 25.09.2007 was also not discussed or raised by anyone. However, again the idea of draft LOI was introduced in this note also. There is no materialon record to indicate that the idea of draft LOI was the idea of Sh. A. Raja. When the vetting of LOI started, everything agreed to by everyone and approved by the Minister was disowned andfresh objections were put by LF Branch, which objections were also readily agreed to by Sh. D. S. Mathur. and may lead to problems, no steps were taken to rectify the situation. This continued year after year. For example, in the instant case, large part of the controversy relates to interpretation of clause 8, dealing with substantial equity. The terms used in this clause include “Associate”, “Promoter”, “Stake” etc. No one in the DoT knows their meaning, despite the fact that the Guidelines were framed by the DoT itself. The interpretation of these words is haunting the DoT since these words were first used, but no steps were taken to assign them a specific meaning. In such circumstances, DoT officers themselves are responsible for the entire mess. Furthermore, notes recorded by various officers in the files are in highly illegible handwriting which are difficult to read and understand. A wrong impression and understanding is created by such badly written notes. Furthermore, the notes are either cryptic, even telegraphic, or extremely lengthy, recorded in highly technical and layered language, which cannot easily be understood by others, but can conveniently be used for finding fault with the superior authorities for agreeing to or disagreeing from it, as the case may be. Notes have also been recorded on extreme margins of the note sheet, some of which have become frayed with the passage of time and cannot be read and understood properly. Non­understanding of the official notes by outside agency creates an impression of wrongdoing.

Thus, the genesis of the instant case lies not so much in the actions of Sh. A. Raja but in the action/inaction of others, referred to above. There is no material on record to show that Sh. A. Raja was mother lode of conspiracy in the instant case. There is also no evidence of his no­holds­barred immersion in any wrongdoing, conspiracy or corruption.

The lack of clarity in the policies as well as Guidelines also added to the confusion. The Guidelines have been framed in such technical language that meaning of many terms are not clear even to DoT officers. When the officers of the department themselves do not understand the departmental guidelines and their glossary, how can they blame companies/ others for violation of the same. The worst thing is that despite knowing that the meaning of a particular term was ambiguous

There is no evidence on the record produced before the Court indicating any criminality in the acts allegedly committed by the accused persons relating to fixation of cut­off date, manipulation of first­come first­served policy, allocation of spectrum to dual technology applicants, ignoring ineligibility of STPL and Unitech group companies, non­revision of entry fee and transfer of Rs. 200 crore to Kalaignar TV (P) Limited as illegal gratification. The charge sheet of the instant case is based mainly on misreading, selective reading, non­reading andout of context reading of the official record. Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness­box. Lastly, if statements were made orally by the witnesses, the same were contrary to the official record and thus, not acceptable in law

I may add that many facts recorded in the charge sheet are factually incorrect, like Finance Secretary strongly recommending revision of entry fee, deletion of a clause of draft LOI by Sh. A. Raja, Recommendations of TRAI for revision of entry fee etc.

I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open Court from 10 AM to 5 PM, awaiting for someonewith some legally admissible evidence in his possession, but all in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings

The end result of the above discussion is that, I have absolutely no hesitation in holding that the prosecution has miserably failed to prove any charge against any of the accused, made in its well choreographed charge sheet Accordingly, all accused are entitled to be acquittedand are acquitted.